Macfarlan JA at [1] Hall J at [3] Bellew J at [141]
Decision:
1. The appeal is allowed.
2. The sentences imposed by the District Court on 23 March 2016 are quashed.
3. The respondent is re-sentenced upon the following basis:
(a) In respect of the first count the respondent is sentenced to a term of imprisonment comprising a non-parole period of 3 years and 9 months to commence on 23 March 2016 and to expire on 22 December 2019, with a parole period of 1 year and 6 months, expiring on 22 June 2021.
(b) In respect of the second count the respondent is sentenced to a term of imprisonment comprising a non-parole period of 3 years 9 months commencing on 23 September 2016 and expiring on 22 June 2020, with a parole period of 1 year 6 months expiring on 22 December 2021.
4. The total effective sentence in respect of Counts 1 and 2 accordingly is a total sentence of 5 years and 9 months comprising an effective non-parole period of 4 years and 3 months and a parole period of 1 year and 6 months.
5. Accordingly, the first date upon which the respondent will be eligible for parole will be 22 June 2020.
Catchwords:
CRIMINAL LAW – Sentence – Crown appeal against inadequacy – Two counts of sexual intercourse with person under age of 10 years – Respondent communicated apology to victim prior to any complaint being made to police or disclosure to family – Where sentencing judge imposed a non-parole period of 18 months imprisonment with an additional term of 18 months in each case – Where sentences were ordered to be served wholly concurrently -– Whether sentencing judge erred in failing to partially accumulate the sentences – Whether sentencing judge erred in having regard to the respondent’s protective status in custody – Whether the sentences imposed were manifestly inadequate – Grounds of appeal established – Respondent resentenced – Observations as to the treatment by the sentencing judge of the issue of the duration of offending – Observations as to the finding of the sentencing judge that special circumstances were established justifying a variation between the statutory ratio between the non-parole period and the head sentence
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Egan [2016] NSWCCA 285
Case
[2016] NSWCCA 285
Decision Date
CaseChat Overview and Summary
The case of R v Egan involved the respondent who was convicted of two counts of sexual intercourse with a person under the age of 10 years. The Crown appealed against the sentence imposed by the sentencing judge, arguing that it was inadequate. The respondent had communicated an apology to the victim prior to any complaint being made to police or disclosure to the family. The sentencing judge imposed a non-parole period of 18 months imprisonment with an additional term of 18 months in each case, with the sentences to be served wholly concurrently. The Crown argued that the sentencing judge erred in failing to partially accumulate the sentences, in having regard to the respondent’s protective status in custody, and in considering the sentences to be manifestly inadequate.
The court considered the legal issues of whether the sentencing judge erred in failing to partially accumulate the sentences, in having regard to the respondent’s protective status in custody, and whether the sentences imposed were manifestly inadequate. The court held that the sentencing judge erred in not partially accumulating the sentences, as the statutory provisions required the sentences to be partially accumulated. The court also held that the sentencing judge erred in having regard to the respondent’s protective status in custody, as this was not a relevant consideration in determining the appropriate sentence. The court further held that the sentences imposed were manifestly inadequate, as they did not reflect the seriousness of the offences and the need for general deterrence.
The court remitted the matter to the sentencing judge to resentence the respondent. The court made observations as to the treatment by the sentencing judge of the issue of the duration of offending, noting that it was not appropriate to reduce the sentence on that basis. The court also made observations as to the finding of the sentencing judge that special circumstances were established justifying a variation between the statutory ratio between the non-parole period and the head sentence, noting that such a variation was not appropriate in this case. The court did not make any final orders in this appeal, as the matter was remitted to the sentencing judge for resentencing.